‘I just don’t see the argument for unconstitutionality’

The Federalist Society is arguably the nation’s premier legal group for conservative attorneys and jurists. If you’re looking for a room full of powerful Republican lawyers eager to take on President Obama in the courts, you’d be wise to start at a Federalist Society gathering.

And with that in mind, it was all the more interesting to see Sam Stein’s latest report from the annual Federalist Society national convention – “one of the highest-profile conservative legal events of the year” – featuring appearances from two sitting U.S. Supreme Court justices. Stein attended a panel discussion where there was broad agreement about the legality of the administration’s plans.

[B]y and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.

“I think the roots of prosecutorial discretion are extremely deep,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead an defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.”

Schroeder added, “I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution…. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.”

He went on to say, “I agree this can make us very uncomfortable. I just don’t see the argument for unconstitutionality at this juncture.”

Other conservative legal scholars offered very similar assessments at the event – and there was no pushback from other attendees.

And for Republicans in Congress, this raises a concern for which there is no obvious solution.

To be sure, some of this is a little premature. We don’t yet know exactly what the White House policy will be, how far it might go, and how far it may stray from existing precedent.

But if the preliminary reports are accurate, Republicans will need more than the “he’s shredding the Constitution!” talking point. Even conservative lawyers seem to realize this just isn’t true.

And it’s not just conservatives. UC Irvine School of Law Dean Erwin Chemerinsky and the Yale Law Information Society Project’s Sam Kleiner wrote today that it’s “clear” the president “has the constitutional authority to decide to not proceed with deportations.”

A president may choose to not enforce particular laws when deciding how to allocate scarce resources or based on his view of the best public policy. Few object, for example, when the Department of Justice does not prosecute those who possess small amounts of marijuana, even though they violated the federal Controlled Substance Act. There are countless federal laws that go unenforced. In 1800, then congressman and later Chief Justice John Marshall stated, the president may “direct that the criminal be prosecuted no further” because it is “the exercise of an indubitable and constitutional power.”

The president’s broad prosecutorial discretion has been repeatedly recognized by the courts…. This prosecutorial discretion is even greater in immigration because the treatment of foreign citizens is inextricably intertwined with the nation’s foreign affairs, an area especially under the president’s control.

Courts have historically given the executive branch broad leeway to decide how to enforce deportation laws for the estimated 11 million immigrants living and working in the country without legal status. […]

UCLA law professor Hiroshi Motomura has been a leading voice for the view that enforcement policy is entrusted to the president.

“He cannot change the rules for granting permanent resident status or putting noncitizens on a path to citizenship,” Motomura said. “But he has the legal authority to set priorities for enforcement.” That may include giving “temporary reprieves to a significant number of unauthorized migrants.”

Republicans have gone about this the wrong way from the outset, setting themselves up for a debate in which their arguments are discredited before the policy is even announced. The GOP is convinced Obama’s actions will be “unprecedented,” but we know that’s incorrect. Republicans are certain the administration’s moves will be “unconstitutional,” but that’s clearly dubious, too.

It’s almost as if Republicans have a “Law of the Instrument” problem. They have one hammer – the notion that Obama is a lawless tyrant – and find themselves in a constant search for nails.

I can appreciate the hole the GOP has dug for itself: the party has spent six years telling its base that the White House is dictatorial and tearing at the fabric of the American tradition. Republican leaders no doubt find it too late to adopt new, more sensible talking points, so they’re left repeating old arguments that don’t make a lot of sense because it’s what Fox News and far-right activists have come to expect.

But what Congress should debate is whether Obama’s actions are wise and whether a permanent, comprehensive solution, achieved through legislative means, is still feasible.

Instead, radicalized Republicans have been reduced to screaming about shutdown, impeachments, and legislative tantrums, all while suggesting “unconstitutional” is now synonymous with “stuff we don’t like.”